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Proving a practical difficulty for a dimensional variance request

While inherently rigid, there are mechanisms in zoning to allow for flexibility.

Figure 1: The home addition proposed in this plan requires a variance from the setback. There are no unique characteristics of this lot or of the land and the design could be changed to meet the side yard setback. This variance should not be granted.

A zoning ordinance is inherently rigid. Within the rigid structure of zoning that defines where suitable uses can take place, the bulk or scale of those uses allowed, how those uses are accessed, etc. there must be mechanisms for flexibility, based on statutory (Michigan Zoning Enabling Act) and Constitutional (5th Amendment) grounds. Zoning must allow for differences in types of allowed uses, physical characteristics of the land, unique needs of neighborhoods and to prevent infringement on constitutionally-protected property interests.

One mechanism for flexibility in zoning is the variance. A variance is the authority to depart from the literal application of the zoning ordinance because of an Unnecessary Hardship (in the case of a use variance) or a Practical Difficulty (in the case of a non-use or dimensional variance) resulting from the physical characteristics of the land. This article will focus on dimensional variances and the principles that amount to a showing of a practical difficulty.

The Michigan Court of Appeals has applied the following principles in dimensional variance court cases, which collectively amount to the showing of a practical difficulty:

Strict compliance with the standard would unreasonably prevent the landowner from using the property for a permitted use, or would render conformity necessarily burdensome;

The particular request, or a lesser relaxation of ordinance standard, would provide substantial justice to the landowner and neighbors;

The plight is due to unique circumstances of property and is not shared by neighboring properties in the same zone; and

The problem is not self-created.

There may be additional standards that apply in a community’s zoning ordinance.

For the first standard, the zoning board of appeals (ZBA) should figure out if there is a way to accomplish the same purpose without a variance, even if it will be more inconvenient or more expensive for the applicant. If so, a variance should not be granted. For example, if the design for an addition brought forward by the applicant can be changed such that a variance is no longer needed, the variance request should be denied (see Figure 1). A variance is granted for circumstances unique to the property (e.g. odd shape), not those unique to the property owner (e.g. large family).

On the second standard, there are valid health and safety reasons for zoning setbacks, but when these regulations treat an applicant unfairly in relation to unique aspects of the land they should be relaxed. However, if a lesser variance than what is requested would provide substantial justice to the property owner, the lesser variance should be considered. For example, if the request is to encroach into the setback by 4 feet, but a 2 foot encroachment would allow the owner to use his/her property for the permitted use, the appeals board must not approve a greater variance than minimally necessary (see Figure 2).

Figure 2: With two front yard setbacks (red line is the buildable envelope) this corner lot has unique circumstances for which a variance to construct a garage may be warranted. However, the proposed three-car garage in this plan is probably beyond the minimum necessary and may not be fair to neighboring properties in the single-family zone.

Third, if the circumstances on which a variance is warranted are shared among numerous properties in the same zone, then the variance request should be denied. It may be better to consider amending the zoning ordinance. For instance, a historic portion of a community developed around the turn of the 20th Century might have 50 foot lots throughout a neighborhood of single-family homes. If this neighborhood is subject to the same zoning standards as neighborhoods developed later with 70 foot wide lots, projects not requiring a dimensional variance in the newer neighborhood will most likely require a variance in the historic neighborhood. The proper solution is to create a new zoning district for the historic neighborhood that is more reflective of the existing character (see Study neighborhood typology to discover a library of information on form).

The fourth standard is widely misunderstood among ZBA members. The proper interpretation is to ask whether the applicant took some affirmative action that created the need for the variance, such as making an unusual land division (shape), filling the entire building envelope so that a porch must necessarily extend into the setback area, digging a pond, etc. Being ‘self-created’ includes actions of the current property owner and actions of all previous owners. So, the applicant may not have caused the problem leading to a variance request because a previous owner did so, but it still considered ‘self-created’ and would preclude granting a variance. Even submitting an application for a dimensional variance to encroach into the side yard setback by two feet for construction of an addition is a self-created situation (i.e. he/she created the need for the variance by designing the request that is now before the ZBA). However, if the landowner’s lot has an unusual shape (e.g. a narrow corner lot with two front setbacks or a triangular lot cut by a railroad right-of-way) that results in a unbuildable lot, this is instead a situation with unique circumstances and a landowner’s request to encroach into the setbacks may be reasonable in order to use the property for the permitted use (and avoid infringement on constitutionally protected property interests).

The role of the ZBA member is an unenviable one. Board members are asked to apply the standards described in this article to the requests of perfect strangers, acquaintances, and friends alike (outside of a bona fide conflict of interest) and do so consistently and without bias. Doing so is made easier when all members of the ZBA understand the standards in the ordinance and have reference material in front of them at each meeting that spells out what constitutes a practical difficulty (or unnecessary hardship). Michigan State University Extension offers training for ZBA members to help them make more legally defensible decisions. Contact a land use educator to schedule a training program in your region.